The Second Amendment and Criminal Law

 Posted on June 22, 2015 in Criminal Defense

Guns are a part of American culture. Unlike many other western nations, our country, for better or worse, has a strong connection to firearms. Aside from our having what is likely the best armed military in the world, we also have a heavily armed population and a constitutional provision that will keep our society that way. The Second Amendment guarantees us the right to “bear arms.” Despite this constitutional right, men and women across our state and our nation find themselves charged with crimes for possessing guns. How is that possible?

What Does the Second Amendment Say?

The Second Amendment is one of the shorter amendments to our constitution. In its entirety it says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Although it is short, it has led to significant confusion over the years. Some people read this language on its face to mean that individual citizens have a right to gun ownership, while others read it to mean that individual states need to have the ability to arm their militias.

What Does the Second Amendment Mean?

In 1939 it seemed that the Amendment was about the militia part, and not about individual gun rights. That year the United States Supreme Court adopted the collective rights approach in allowing Congress to regulate sawed-off shotguns. This interpretation was the law of the land up until 2008 when the United States Supreme Court ruled that the Second Amendment established an individual right for citizens to possess firearms. Then in 2010 the Court ruled that states could not infringe on this right any more than the federal government can.

If People Have an Individual Right to Bear Arms, then Why Are People Locked Up for Possessing Guns?

If we have the constitutional right to possess guns, why do people get locked up for possessing guns? Part of the answer is that some of our laws have not changed or have not been adequately changed to comply with the United States Supreme Court’s’ holdings, and some people are still being prosecuted under these outdated laws. But that is only part of the issue. Certain limitations on gun ownership are still allowed even though the constitution says that the right “shall not be infringed.” For example, convicted felons and certain mentally ill people are currently allowed to be stripped of their gun rights. This is similar to how felons in some states are striped of their rights to vote and to act as jurors. Other restrictions that are allowed include those that are similar to the “time, place, and manner” restrictions placed on your right to free speech. Guns can be banned from certain areas and licensing requirements can be put in place for those who want to carry their guns in public. This is similar to how protesters can be required to obtain permits to protest in certain areas.

Call the Law Offices of Christopher M. Cosley

Even if you never commit a violent act you may find yourself charged with a gun crime. You can also find yourself charged with a crime after you have justifiably used a firearm in self-defense or in defense of another. If this happens to you, you will need the assistance of an experienced Rolling Meadows criminal defense attorney. Call us at the Law Offices of Christopher M. Cosley at 847-253-3100. We will fight for you and help you to obtain the best possible outcome in your situation.